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Keller v. Elec. Arts Inc. (In re NCAA Student-Athlete Name & Likeness Licensing Litig.) - 724 F.3d 1268 (9th Cir. 2013)

Rule:

Under the "transformative use" test developed by the California Supreme Court, a defendant's use of a plaintiff's likeness does not qualify for First Amendment protection as a matter of law if it literally recreates the plaintiff in the very setting in which he has achieved renown.

Facts:

NCAA Football was a series of video games, which allowed users to control avatars representing college football players. Electronic Arts, the game developer, sought to replicate each school’s entire team as accurately as possible. In the 2005 edition of the game, Samuel Keller, the starting quarterback for Arizona State University was virtually replicated. Objecting to the use of his likeness, Keller filed a putative class-action complaint in the Northern District of California asserting that Electronic Arts violated his right of publicity under California Civil Code § 3344 and California common law. Electronic Arts moved to strike the complaint as a strategic lawsuit against public participation (SLAPP) under California’s anti-SLAPP statute, and the district court denied the motion. Electronic Arts challenged the district court’s decision, asserting First Amendment defense against the right-of-publicity claims of Keller.

Issue:

For purposes of an anti-SLAPP motion under Cal. Code Civ. Proc. § 425.16(b)(1), did a game developer have a First Amendment defense against the right-of-publicity claims of a former college football player whose likeness was used in a video game?

Answer:

No.

Conclusion:

The Court of Appeals for the Ninth Circuit held that the video game developer Electronic Arts had no First Amendment defense against the right-of-publicity claims of former college football player, Samuel Keller. According to the Court, under the “transformative use” test developed by the California Supreme Court, Electronic Art’s use did not qualify for First Amendment protection as a matter of law because it literally recreated Keller in the very setting in which he had achieved renown. The Court rejected Electronic Art’s suggestion to import the balancing test set forth by the Second Circuit in Rogers v. Grimaldi, 875 F.2d 994 (2nd Cir. 1989), which had been created to evaluate Lanham Act claims, into the right-of-publicity arena. The Court further held that the state-law defenses for the reporting of factual information did not protect EA's use. Accordingly, the Court affirmed the district court’s judgment.

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